Thompson v Albarran - [2009] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
THOMPSON & ORS v ALBARRAN & ORS
[2009] SASC 54
Reasons of Judge Withers a Master of the Supreme Court
27 February 2009
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT - EFFECT AND CONSTRUCTION
Notice to Produce - subpoena.
Supreme Court Rules 1987 (SA) r 59.02, referred to.
Lilypond Constructions Pty Ltd v Homann & Ors [2005] QSC 263, applied.
Thompson & Ors v Albarran & Ors [2008] SASC 112; Mann v Carnell (1999-2000) 201 CLR 1, considered.

THOMPSON & ORS v ALBARRAN & ORS
[2009] SASC 54

JUDGE WITHERS. On 31 October 2007 the plaintiffs by Notice for Specific Directions – FDN 42 – applied for an order that there be no order for costs made against them on discontinuing the action. The plaintiffs chose to support that application by filing two affidavits, one being an affidavit of the second plaintiff filed 21 November 2007 – FDN 46 – and the other an affidavit of the plaintiffs’ solicitor – FDN 48 – filed 21 November 2007.
On 24 January 2008 the defendants requested the issue of subpoenas to the second plaintiff and his solicitors for the production of documents. On 8 February 2008 by Notice for Specific Directions the plaintiffs applied to set aside those subpoenas and extend the time for compliance – see FDN 50. That application was supported by affidavits of the second plaintiff – FDN 51 – and the solicitor for the plaintiff – FDN 52. On the same date an affidavit of Mr Beau Quarry was filed for the defendants in opposition to the plaintiffs’ application that there be no order for costs on the discontinuance.
The application to set aside the subpoenas came on for hearing before Gray J and following an initial hearing his Honour delivered a decision staying the operation of the subpoenas pending the defendants utilizing Rule 59.02 of the Supreme Court Rules 1987 (SA) to seek production of any documents referred to in the affidavits – see Thompson and Ors v Albarran and Ors [2008] SASC 112.
It appears that the defendants then served a Notice to Produce which in submissions before me was readily accepted to be a cut and paste document prepared from the two subpoenas. It was apparently served on the plaintiffs’ solicitors on 5 May 2008. The plaintiffs filed a response to the Notice to Produce on 12 May 2008 – FDN 56. The defendants then filed a reply to the plaintiffs’ response to the Notice to Produce on 20 May 2008, being FDN 58. The actual Notice to Produce was not filed by the defendants until 11 June 2008 and is FDN 60 on the Court file.
The matter came on for preliminary rulings before me and on 4 August 2008 those preliminary rulings were delivered – see FDN 62. In those rulings I found that the plaintiffs were at liberty to seek to rely on all exclusionary provisions that applied to the production of documents under Rule 59. In my view this approach was consistent with the rulings made by Gray J in his earlier decision. Accordingly I indicated that I would hear oral submissions from the parties as to whether there is sufficient reference to each document or category of documents sought in the Notice to Produce where that challenge has been raised as this was an issue that the plaintiffs wished to agitate.
Further directions were given to progress the matter, one of those directions being that the plaintiffs file a list of documents setting out those documents that the plaintiffs asserted may have been encompassed by the subpoenas served upon them and/or the Notice to Produce and setting out any claims for privilege made in respect thereof. The plaintiffs duly filed such a list on 21 October 2008 – FDN 64.
On 11 November 2008 the plaintiffs filed an Amended Response to the Notice to Produce – FDN 65 – pursuant to permission given on 7 November 2008.
The matter was argued on 7 November 2008. The parties filed or lodged a number of submissions. On 18 July 2008 the defendants lodged submissions on the Notice to Produce and referred to their earlier submissions. On 24 July 2008 the plaintiffs’ submissions were lodged in response to the defendants’ submissions. On 6 November 2008 the plaintiffs lodged further submissions on the Notice to Produce together with a list of authorities.
During the course of the argument on 7 November 2008 the plaintiffs submitted an aide memoire which referred to the items in the Notice to Produce, gave the description therein, noted the plaintiffs’ response and referred to what was alleged to be the relevant extract from the affidavit. As the defendants’ counsel had not had an opportunity to consider this document prior to the argument permission was given to the defendants to file a further document setting out their response to the assertions in the aide memoire. This response was forwarded to the Court on 18 November 2008. In that response the defendants set out three general responses which were described as “the waiver response”, “the no specific document response”, and “the privilege response”. I will deal in detail with that aide memoire in due course.
On 28 November 2008 – FDN 67 – the plaintiffs filed an outline of submissions in reply and an affidavit of Mr Daenke – FDN 66. Permission had not been given to file that affidavit.
On 1 December 2008 the defendants’ solicitors wrote to the Court complaining about the late filing of the affidavit of Mr Daenke after the argument had been concluded. On 12 December 2008 the plaintiffs’ solicitors referred the Court to a recent Victorian authority on privilege. I address the late filing issue later in these reasons.
Rule 59.02 of the Supreme Court Rules 1987 (SA) forms part of a rule that relates generally to the production of documents. The rule is designed to establish a procedure for the production, inspection and copying of documents. The relevant part of the rule for this particular dispute is Rule 59.02 and Rule 59.03. Rule 59.02 is in the following terms:
59.02 Where a party has filed a pleading or an affidavit referring to a document he shall within seven days of receipt of any request from another party in accordance with the request either make such document available for inspection by that other party, or furnish that other party with a copy of the document at that party’s cost.
Rule 59.03 is as follows:
59.03 An order for the production of any document or copy thereof shall not be made unless the Court is of the opinion that the order is necessary for disposing fairly and expeditiously of the action and is not injurious to the public interest.
As to Rule 59.03 and its application it was submitted before me that in the event that I found there was a document referred to in the affidavits that fell within the ambit of Rule 59.02 then an order should not be made for its production because it could not be necessary for the fair and expeditious disposition of the action, the action having been discontinued. I reject that submission. While the action has been discontinued an issue remains live between the parties, namely the liability or otherwise of the plaintiffs to pay the defendants’ costs on the discontinuance. The Court has a discretion to make an order in respect of that issue which discretion will be guided by the reasonableness or otherwise of the plaintiffs’ conduct in instituting, continuing and discontinuing the proceedings as and when they did.
The reasonableness of that conduct remains a live issue. If on the application of Rule 59.02 a document is identified which would be subject to production under that rule and production is not prevented by applicable legal professional privilege then, in my view, the plaintiffs will be unlikely to be able to successfully rely on Rule 59.03. Obviously each such identified document or documents have to be considered separately but, in my view, there are still live issues between the parties. The affidavits of the second plaintiff and the solicitor for the plaintiffs which give rise to the request for production are affidavits that must have been filed in an effort to support the plaintiffs’ claim that they should not be liable for costs on the discontinuance because their conduct was reasonable in all the circumstances.
The first question to be determined is whether or not any of the document or documents referred to on the Notice to Produce fall within the ambit of Rule 59.02. The rule requires “a pleading or an affidavit referring to a document”. The rule is in similar terms to the Queensland UCPR Rule 222 which was considered in obiter remarks by Mackenzie J in Lilypond Constructions Pty Ltd v Homann and Ors [2005] QSC 263. At [12] of his reasons, his Honour said:
[12] On 24 August 2005 a document headed “notice to produce” requiring “production and copies of … documents mentioned expressly or by implication in the affidavits of the defendants’ solicitor and the first defendant pursuant to various paragraphs of their affidavits was served on the defendants’ solicitors. Typically, the notice to produce required production of “all and any written material” including, in some cases, file notes, associated with paragraph 34 of the defence. Rule 222 provides that a party may by written notice require another party in whose pleadings particulars or affidavits mention is made of a document to produce it for inspection and to permit copies to be made. The focus of Rule 222 is the allegation that mention is made, in this case, in two affidavits. The notice to produce, which subsequently was used as the basis for an application for an order that the documents sought in the notice to produce be disclosed, proceeds on the assumption that there would be such documents but does not identify any specific document as having been mentioned in the affidavit.
In [13], his Honour refers to the affidavit of the defendants’ solicitor referring to “instructions”. There was no express reference to documents containing instructions. Reference was made to information. His Honour said at [14]:
[14] It is undoubtedly probable that some documentary evidence of instructions was created at some time. However, it seems to me that Rule 222 is directed towards a particular situation, that is to say where a document is specifically referred to in the affidavit. Where it is impossible to identify a specific document referred to in the affidavit and the affidavit is ambiguous as to whether any document was in existence at the time relating to the particular reference to “instructions”, I am not persuaded that Rule 222 has any operation. In my view Rule 222 requires a clear and unambiguous reference to a document before it can operate.
I note that his Honour Judge Lunn in his commentary Civil Procedure South Australia at R 59.02.1 says:
… Rule 59.02 is confined to documents expressly referred to in the pleading or affidavit, and does not extend to documents only impliedly referred to: …
The learned author refers to the Lilypond Constructions case to support that proposition. For R 59.02 to apply the reference to a document or documents in a pleading or affidavit must be sufficiently precise to enable a Court without more to make an enforceable order for production.
The first question therefore for determination is whether there are any document or documents referred to in the relevant affidavits of the second plaintiff and the solicitor for the plaintiffs, which documents are referred to in a “clear and unambiguous way”. In the event that there are such documents which have not been produced, it will then be necessary to consider whether those documents are the subject of legal professional privilege and whether or not that privilege has been waived.
Counsel for the defendants argued that if the Court were to find that the document or documents were not specifically referred to then it would not be helpful for the Court at this time to continue to consider the issue of privilege in the event that the Court was found to be wrong on its determination of the first question. Such a consideration might unduly prejudice the defendants who might not quarrel with the first finding as to the “clear and unambiguous” reference but who may well quarrel with the Court’s findings on privilege. I accept the force of that argument. Accordingly, unless there is a finding of a reference to a document which reference is clear and unambiguous I will not at this stage move on to consider issues of privilege.
I also note that the defendants’ counsel asserted that the defendants were placed in a somewhat invidious position in this matter. In argument before the Honourable Justice Gray on the notice to set aside the subpoenas the defendants had submitted that the subpoena process was appropriate as there was insufficient reference to the documents that the defendants were seeking to attract the operation of Rule 59.02. In this case the defendants had to argue that there was sufficient reference to the documents such that Rule 59.02 applied.
I note in relation to documents sought by subpoena that there is only a requirement that the documents sought be specified with reasonable particularity. As his Honour Judge Lunn says in Civil Procedure South Australia at R 81.01.15 relating to the 1987 Rules:
… The documents to be produced must be identified with sufficient certainty to leave no real doubt in the mind of the person to whom the subpoena is addressed about which documents are required: …
In my view this is a significantly different test from that to be applied under Rule 59.02.
I note, again referring to the commentary of his Honour Judge Lunn Civil Procedure South Australia and R 59.02.1 that:
… Rule 59.02 is not to be used to require production of a document referred to in an affidavit sworn to support an objection to the production of the document …: Beneficial Finance Corp Ltd v Price Waterhouse (1996) 68 SASR 19; …
That approach equally applies to a list of documents filed pursuant to an order of the Court where that list of documents was to encompass documents which potentially fell within the ambit of the Notice to Produce or the subpoenas. The description of the category of documents was exactly the same for the subpoenas and the Notice to Produce.
Turning now to the Notice to Produce there were some 33 items in respect of which production was sought. Nine of those items resulted in the production of documents, being items 1, 2, 12, 13, 14, 15, 16, 17 and 26. On two of the further items the plaintiffs’ objections were unchallenged, being items 5 and 25. Accordingly, the matters left for resolution are items 3, 4, 6, 7, 8, 9, 10, 11, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32 and 33. In relation to all of those challenged items for production the plaintiffs have taken an initial objection that there is no specific document or documents referred to in the affidavits and, accordingly, no obligation to produce under Rule 59.02.
There are four categories of objections to any production. Category 1 is no document referred to and includes items 22 and 30. Category 2 is no document referred to and in any event protected by legal professional privilege. This includes items 4, 6, 7, 8, 9, 10, 11, 18, 19, 20, 21, 23, 24, 27, 28 and 29. Category 3 is no document referred to and in any event irrelevant. This includes item 31. Category 4 is no document referred to and in any event protected from production by legal professional privilege and in any event not relevant. This includes items 3, 32 and 33. I will deal with each category in turn.
The defendants in their general response to the plaintiffs’ aide memoire “submissions” referred to three issues, namely the waiver response, the no specific document response and the privilege response.
As to the no specific document response the defendants argued that counsel for the plaintiffs had agreed before Gray J that the Notice to Produce was the correct procedure to be used for the defendants to obtain the documents the subject of the subpoenas. Reference was made to the transcript of the argument before Gray J. Reference was made to Gray J’s ruling and comments in the transcript where his Honour refers to the plaintiffs drawing on “the content of documents”. The defendants therefore argued that his Honour had set down the test to be applied in this Court in considering the applicability of R 59.02, namely that where the plaintiffs sought to draw on the contents of a document or documents then the same is to be produced subject to any just exception.
I have earlier ruled that the issue of clear and unambiguous reference to the documents is live in this matter. It is correct that where the plaintiffs seek to draw on the contents of a document then subject to legal professional privilege and relevance the document should be produced. However, there must be a clear and unambiguous reference to the document or documents upon which the plaintiffs are seeking to rely for R 59.02 to have any operation. The rulings of Gray J do not go to ameliorate the obligation for there to be a clear and unambiguous reference to a document or documents in the affidavits for R 59.02 to apply.
Secondly, as to the privilege response the defendants raised in their general response that the Court needed to be satisfied that on the face of the description of the document there would likely be privilege. They raised the issue of a number of documents being communications between the plaintiffs’ solicitors and the “Peebinga Plaintiffs Group” which was an unknown entity. They raised other issues in relation to the communications and whether or not a solicitor/client relationship existed between the plaintiffs’ solicitors and the particular recipient of the communication.
Mr Wooller’s affidavit in paragraph 23 appears to confirm that the solicitors, Lynch Meyer, were retained by the Peebinga Independent Pistachio Growers Association in April 2005 as per the affidavit of Mr Daenke in paragraph 2. I note that the defendants have conceded a solicitor/client relationship between the plaintiffs and the solicitors. I also note that the “Peebinga Plaintiffs Group” which appears to be involved in email communications with those solicitors has been explained in Mr Daenke’s last affidavit as being his group user name for the plaintiffs.
It is to be noted that it was the defendants’ written response to the plaintiffs’ aide memoire which was received by the Court on 18 November 2008 that led to the filing of the further affidavit of Mr Daenke and further submissions which were part reply to the defendants’ response to the aide memoire and in part submissions based on the late affidavit. Mr Daenke explained in his affidavit that the Peebinga Plaintiffs Group was a group name created by him for his communications with the plaintiffs by email. I have decided to receive that affidavit and have provided the defendants with an opportunity to make any further submissions they may wish in light of the receipt of that late affidavit. While I will hear the parties on costs my preliminary view is that the defendants will be entitled to have any costs thrown away by them as a result of the late affidavit and submissions for the plaintiffs being received. By letter dated 24 February 2009 the defendants responded to those submissions arguing that the Court should inspect documents before deciding whether privilege applies.
The third general response is the waiver response in which the defendants argued relying on Mann v Carnell (1999-2000) 201 CLR 1 at [34], that a confidential legal advice disclosed “for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect”. Further reference is made to other authorities. In paragraph 8 of the waiver response submissions the defendants say:
In this case, it would be unfair to allow the Plaintiff to rely on and refer to legal advice in an attempt to explain and justify their actions and further their case, but at the same time not allow the Defendant access to that advice or communication so as to allow the Plaintiffs account to be examined for its accuracy or to allow an examination of the plaintiffs knowledge and understanding at each relevant time especially when the Plaintiffs knowledge and understanding is evidenced by the communications referred to. It is inconsistent to allow the Plaintiffs to disclose the advice for forensic advantage yet let them keep the advice from their opponent.
That assertion seems to me to be at the heart of the defendants’ argument as to waiver. I question in passing the relevance of a solicitor’s advice to the question of whether or not the plaintiffs in the circumstances known to them acted reasonably in instituting, continuing and discontinuing the proceedings when they did.

I turn now to the items in dispute. The first category of objection is that there is no documents referred to. Items 22 and 30 of the Notice to Produce are objected to by the plaintiffs on that basis.
Item 22 of the Notice to Produce is in the following terms:
22.Any document pursuant to which “some members have advised that they are not in a position to contribute further to the fighting fund” as referred to in paragraph 53 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Item 22 refers to paragraph 53 of the affidavit of the second plaintiff – FDN 46. That is in the following terms:
53.The Plaintiffs are upset at the period of time and expense that it has taken to obtain discovery from the Defendants. Many of the members of the Association are now elderly. There have been expressions of concern about the delays. Since the original group was formed at least five growers have died. Some members have advised that they are not in a position to contribute further to the fighting fund.
The plaintiffs assert that there are no documents referred to. The defendants assert all of their general objections, although privilege and waiver are unlikely to be relevant. The defendants further assert that the financial standing of the members is said to be a relevant matter in the plaintiffs’ decision to discontinue the proceedings. What the members told the plaintiffs about their financial standing is therefore relevant to that issue. It would be inconsistent with notions of privilege and fairness to allow the plaintiffs to withhold the communication from the defendants. That submission goes more to the privilege response and the waiver response than to reference to documents.
In my view there is no clear and unambiguous reference to any document or group of documents in paragraph 53 of FDN 46 and I rule that no production of any document is required under R 59.02.
Paragraph 30 of the Notice to Produce requires production of:
30.Any documents provided to you whereby the Plaintiffs “informed you …that there was a dispute between Mr Fleming and Mr Platt with Pegara Pty Limited”, as referred to in paragraph 32 of the Affidavit of John Daenke dated 20 November 2007.
The objection of the plaintiffs to the production is that there is no specific document referred to and therefore no obligation to produce anything.
Paragraph 32 of Mr Daenke’s affidavit relevantly reads as follows:
32.I had been informed by the Plaintiffs and believed that there was a dispute between Mr Fleming and Mr Platt within Pegara Pty Ltd and that for that reason the earlier proposed corporatisation of PPA had not proceeded. …
In my view this falls into the information category referred to by Mackenzie J in the Lilypond case. There is no clear and unambiguous reference to a document and there will be no order for production under R 59.02 in respect of item 30 of the Notice to Produce.
The next category I address is no document referred to and in any event disputed on the grounds of relevance. There is only one item, which is item 31. In the Notice to Produce item 31 is as follows:
31.Any document constituting “information provided to me (you) by the Plaintiffs” as referred to in paragraph 38 of the Affidavit of John Daenke dated 20 November 2007.
The relevant sentence from paragraph 38 of Mr Daenke’s affidavit is:
38.… I understood from information provided to me by the Plaintiffs that Elan was a company controlled by Fleming. …
Again, in my view, there is no clear and unambiguous reference to a document. Rather it is information and in my view R 59.02 has no application. I note in passing and without in any way relying on or applying same that in the list of documents – FDN 64 – relating to subpoenas and Notice to Produce item 31 refers to two reports which are exhibited to Federal Court affidavits and not privileged.
The next category includes items 3, 32 and 33. In this category the objections are taken on the basis that there are no documents specifically referred to, in any event if there was a document then it would be privileged from production on the grounds of legal professional privilege and further that any such document would in any event not be relevant to the matters presently in issue.
Item 3 of the Notice to Produce is as follows:
3.Any document constituting advice whereby “Mr Daenke told the other Plaintiffs and me about those searches, their contents and the likely effect of the mortgages and charges which PPA had granted” as referred to in paragraph 23 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 23 of the affidavit of Mr Wooller – FDN 46 – in the last sentence reads as follows:
… Mr Daenke told the other plaintiffs and me about those searches, their contents and the likely effect of the mortgages and charges which PPA had granted.
The plaintiffs argue that there is no specific document referred to and therefore no obligation to produce a document and that in any event if there were such a document it would be privileged from production on the grounds of legal professional privilege and not relevant to the matters in issue. The defendants put forward the waiver response, the no specific document response and the privilege response. In further comments the defendants note that in paragraph 24 of Mr Wooller’s affidavit he sets out that this was the first occasion on which he became aware “by reason of the mortgage and the charge the interest of the growers may have been severely prejudiced”. The defendants point out that the action that followed the advice is described in paragraph 55 of the affidavit of Mr Wooller and paragraph 16 of the affidavit of Mr Daenke.
As to the issue of relevance, in my view the information provided to the plaintiffs at that time when they were told by Mr Daenke about the searches, their contents and the likely effect of the mortgages and charges would be relevant to the reasonableness or otherwise of the plaintiffs’ decision to further pursue this action. I would therefore not accept the plaintiffs’ objection on the grounds of relevance.
There is, however, no document referred to in paragraph 23 save an affidavit of Mr Daenke sworn and filed in the Federal Court proceedings which Mr Wooller says he has read. That affidavit is obviously a document that would have to be produced on request. It is likely the defendants already have a copy of it. There being no reference to a document or documents in clear and unambiguous terms, in my view R 59.02 does not have application. In those circumstances it is not necessary to address the issue of privilege.
Accordingly, in my view, there is no requirement to produce any documents as sought in the Notice to Produce item 3 pursuant to R 59.02.
Notice to Produce item 32 is as follows:
32.Any document whereby you were “informed by the Plaintiffs that nut sales from the Scheme since 2002 had produced significant income to PPA but there had been no distribution to Growers” as referred to in paragraph 39 of the Affidavit of John Daenke dated 20 November 2007.
Again the plaintiffs’ objection to this request for production was that there was no specific document referred to. If a document can be identified and is otherwise required to be produced then it would be subject to legal professional privilege and would in any event be irrelevant.
Paragraph 39 of the affidavit of Mr Daenke – FDN 48 – says relevantly:
39.I was further informed by the Plaintiffs that nut sales from the Scheme since 2002 had produced significant income to PPA but there had been no distribution to Growers. …
Mr Daenke’s affidavit goes on to assert that the income from the nut sales appeared in the financial statements produced by Fleming in the Federal Court proceedings which were exhibited to his affidavit sworn on 24 February 2006 in these proceedings. Again it is likely that the defendants have copies of that document. It is not sought in the Notice to Produce.
The defendants again put the no specific document response, the privilege response and the waiver response and on this occasion repeated its response to the Notice to Produce item 27. In that item the only objections were no document referred to and legal professional privilege without the additional objection of relevance. The defendants said in their response:
The instructions have been referred to in the said affidavit and are therefore prima facie relevant to something sought to be agitated by the Plaintiff. It is [sic] would now be inconsistent with notions of privilege and fairness to allow the Plaintiff to withhold the communication from the Defendants. Further what the Plaintiff claims that it knew and did not know is relevant to its claim that it needed further information as and as a result of this could not continue with the proceedings (Para 55 and 56 IWA). The substance of the communication has been disclosed. [Underlining mine.]
In this matter I would rule against the plaintiffs’ claimed ground of a lack of relevance but, again, in my view there is no clear and unambiguous reference to a document such as to attract the operation of R 59.02. I therefore decline to order production of any documents as described in item 32 of the Notice to Produce. It is not necessary for the issue of privilege to be addressed.
Item 33 is the next item from the Notice to Produce falling under this category. Item 33 of the Notice to Produce is in the following terms:
33.Any documents relating to the “legal costs” incurred by the Plaintiff as referred to in paragraph 142 of the Affidavit of John Daenke dated 20 November 2007, including but not limited to the following:-
(i)    Trust Account Ledgers;
(ii)     Time Ledgers;
(iii)     Diary Ledgers; and
(iv)    Tax invoices.
Item 142 of the affidavit of Mr Daenke is in the following terms:
142.The Plaintiffs also incurred legal costs in relation to work done by me in respect to the approval for the sale of the property. If the Defendants had provided discovery properly and in a timely manner and following advice the Plaintiffs had then elected to discontinue, the Plaintiffs would not have incurred costs associated with that application.
The plaintiffs object to the production of documents on the grounds of no specific document referred to, privilege and in any event relevance to matters presently in issue. The defendants make their three general responses as to specific documents, privilege and waiver. They argue that there is no privilege in an account or trust statement and that as the plaintiffs had agitated ongoing legal costs as a reason for discontinuance and blamed this on the defendants that puts in issue the legal costs incurred by the plaintiffs. The defendants argue that it would be inconsistent with notions of privilege and fairness to allow the plaintiffs to withhold that communication from the defendants.
In my view item 33 of the Notice to Produce must fail on the no specific document ground in any event. However, in this case I have formed the view that the documents sought are not relevant to any issue remaining between the parties which issues are only the reasonableness of the plaintiffs initiating, continuing and discontinuing the proceedings when they did. The request is in my view more of a fishing expedition and should not be allowed in any event even if the documents were clearly and unambiguously referred to. I reject the request for production of the documents in item 33.
The fourth and final group of documents in respect of which production is sought are those falling under the category of no document referred to and legal professional privilege claimed in any event. This group includes the Notice to Produce items 4, 6, 7, 8, 9, 10, 11, 18, 19, 20, 21, 23, 24, 27, 28 and 29.
I turn to item 4. Notice to Produce item 4 seeks the production of the following documents:
4.Any document constituting the advice from your offices to the effect that “there were suspicious circumstances surrounding the transaction” as referred to in paragraph 24 of Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
The drawing of this item reflects the fact that this Notice to Produce is a cut and paste from the description of documents in the subpoenas addressed separately to the plaintiffs and to the solicitors for the plaintiffs. The advice from “your offices” must refer to the solicitors for the plaintiffs.
In paragraph 24 of the affidavit of Mr Wooller he relevantly says:
24.This was the first occasion on which I was aware that by reason of the mortgage and the charge the interest of the growers may have been severely prejudiced. The Committee wanted advice on grower’s rights. We were advised by our solicitors that there were suspicious circumstances surrounding the transactions and the link to other Fleming companies. I had never heard of Coonawarra Gold Pty Ltd. PPA was only involved in growing pistachios.
There is no reference to a document or group of documents in that paragraph. There is reference to advice and obviously that advice may be in part or wholly contained in documents but, nevertheless, there is no reference to a document sufficient to meet the requirements of R 59.02. On that ground alone I would refuse production of any document pursuant to R 59.02 in respect of the Notice to Produce item 4.
The plaintiffs in response to item 4 in the Notice to Produce took the no specific document objection and privilege. The defendants repeated their three general assertions of no specific document response, privilege response and waiver response. Again in its response the defendants referred to the advice as to suspicious circumstances being further set out in paragraphs 33 and 55 of Mr Wooller’s affidavit. Neither of those paragraphs referred to any particular document that might fall within the category of the documents sought on the Notice to Produce item 4, which is confined to documents constituting the advice from “your offices”.
The plaintiffs assert that in any event if a document were sufficiently identified then it would be subject to legal professional privilege. It is difficult to see how it would not but it is not necessary to decide that issue nor is it necessary to decide in all the circumstances whether privilege has been waived. Accordingly, I refuse to order production of the items sought in item 4 of the Notice to Produce.
Item 6 of the Notice to Produce is in the following terms:
6.Any document constituting “instructions to the solicitors (you)” as referred to in paragraph 29 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 29 is in the following terms:
29.On behalf of the Association the Plaintiffs gave instructions to the solicitors for the Association to investigate and advise on proceedings in the nature of a class action to endeavour to obtain funds which Growers felt was their entitlement if there was a sale of the PPA property.
Again there is no reference to a document in clear and unambiguous terms. The plaintiffs take the no specific document and privilege objections. The defendants put forward their usual three general responses on no specific document, privilege and waiver. The defendants further argued that such documents if they existed would be relevant to the decision of the plaintiffs to authorise the commencement of the proceedings. The defendants refer:
… Importantly, the advice that flowed from those instructions is set out at para 30 line 8 onward IWA “we were advised that we needed to get discovery …”.
There may well be arguments of privilege and waiver in relation to this item but as there is no specific document referred to in the affidavit in clear and unambiguous terms, in my view R 59.02 has no application. I therefore decline to order the production of any document pursuant to item 6 of the Notice to Produce.
Item 7 of the Notice to Produce is in the following terms:
7.Any document constituting the advice from you to the effect that “we (the Plaintiffs) needed to get discovery so that our solicitors (you) could inspect documents” as referred to in paragraph 30 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 30 of the affidavit of Mr Wooller relevantly says:
30.… We were advised that we needed to get discovery so that our solicitors could inspect documents relating to the circumstances of the entry into the Mortgage and Charge to Robier and the transfer of the Mortgage to Thunder and then to advise us about the action. …
The plaintiffs take the no specific document and legal professional privilege objections. The defendants repeat their response for no specific documents, privilege and waiver. Again the defendants’ further submissions on the aide memoire go to essentially the issues of privilege and waiver. The defendants submit that this advice goes to the reasonableness or otherwise of the decision by the plaintiffs to commence proceedings and to seek large scale discovery. They argue that it would be inconsistent and unfair to allow the plaintiffs to withhold the advice.
There may be strength in that argument but there is no reference in paragraph 30 of Mr Wooller’s affidavit to any document or documents in any clear and unambiguous terms that could be sufficient to invoke an order under R 59.02 for their production. I therefore refuse the defendants’ request for production pursuant to item 7 of the Notice to Produce.
Item 8 of the Notice to Produce is in the following terms:
8.Any documents constituting the advice given by you to the Plaintiff’s to the effect that they had to get “information about what Robier and its directors and Thunder and its directors knew about the existence of the growers and what enquiries had been made” as referred to in paragraph 30 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
For the same reasons in relation to item 7, I decline to order any production of documents pursuant to the Notice to Produce item 8. The relevant passage from the affidavit of Mr Wooller is paragraph 30:
30.… We were told that we had to get information about what Robier and its directors and Thunder and its directors knew about the existence of the Growers and what enquiries had been made by them at the time of and immediately before the Robier mortgage and charge were granted and later transferred to Thunder.
There is no reference to a document or documents in that sentence.
Item 9 of the Notice to Produce is in the following terms:
9.Any document constituting advice given by you to the Plaintiffs that if the mortgages and charges “if set aside, could well result in the securities not providing security for any repayable loan or obligation or only constituting security for a lesser amount” as referred to in paragraph 32 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 32 of Mr Wooller’s affidavit is in the following terms:
32.The majority of the facts pleaded when this action started were ascertained by searches at the LTO and ASIC and to a lesser extent from Fleming’s affidavit in the Federal Court proceedings being Ex JAD 49 to Daenke’s affidavit of 14 March 2007 in this action. In summary, at that time the plaintiffs knew of the granting and up stamping of the mortgages and charges but not the underlying transactions, which, we were advised, if set aside, could well result in the securities not providing security for any repayable loan or obligation or only constituting security for a lesser amount.
Again the plaintiffs rely on no specific document and in any event privilege arguments. The defendants repeat their response to Notice to Produce item 4. For the same reasons given in response to the Notice to Produce item 4, I decline to order the production of any document pursuant to item 9 of the Notice to Produce.

Item 10 of the Notice to Produce is in the following terms:
10.Any document constituting “the advice” referred to in the first line of paragraph 33 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Mr Wooller’s affidavit at paragraph 33 is in the following terms:
33.When the proceedings were instituted the plaintiffs were advised and we considered the following matters were suspicious and constituted grounds for believing that transactions underlying the Robier securities were not for the benefit of growers and were potentially liable to be set aside: …
Paragraph 33 then goes on to set out a number of events. The defendants seek to obtain by item 10 any document constituting the advice. Again there is no specific document referred to and in any event the plaintiffs claim privilege if a document were found liable to production. The defendants rely on their three general responses as to no specific document, privilege and waiver. They again repeat their response to document 4, and again for the reasons that I set out in relation to Notice to Produce item 4 it is in my view not appropriate to make any order for production of any document pursuant to Notice to Produce item 10.
Item 11 of the Notice to Produce is in the following terms:
11.Any document constituting the “regular reports” to the Plaintiffs as referred to in paragraph 37 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Item 37 of Mr Wooller’s affidavit is in the following terms:
37.The Plaintiffs’ solicitors have regularly reported to the Plaintiffs regarding correspondence received from the Defendants and the outcome and significance of applications to the Court by the Plaintiffs and the Defendants.
The only documents referred to there are in correspondence received from the defendants. The regular reports could be by way of conferences and/or correspondence and/or emails. There is, however, no reference to any document in clear and unambiguous terms such that without more the Court could make an enforceable order for production. Rule 59.02 does not apply.
I note that the plaintiffs took their usual objections of no specific documents and in any event privilege. The defendants took their privilege, no specific document and waiver response and again the bulk of their submissions are addressed to the issues of privilege and waiver rather than to the specific reference to any documents. For the reasons earlier given in relation to no document being clearly and unambiguously referred to there will be no order for production in relation to Notice to Produce item 11.
Item 18 of the Notice to Produce is as follows:
18.Any document constituting the advice referred to at paragraph 46 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 46 is in the following terms:
46.We were advised that the Defendants’ discovery was defective which was confirmed by the decision of Master Withers.
The plaintiffs made their no specific document and legal professional privilege objections. The defendants put forward again their three responses and repeated their responses to Notice to Produce items 11 and 18. Again the submissions go largely to privilege and waiver and again, in my view, those issues do not arise as there is no specific reference to a document in clear and unambiguous terms that would attract the operation of R 59.02. I decline to make any order for production of a document pursuant to Notice to Produce item 18.
Item 19 of the Notice to Produce is in the following terms:
19.Any document constituting the advice given by you to the Plaintiffs “shortly before the appeal” as referred to at paragraph 47 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 47 of Mr Wooller’s affidavit is in the following terms:
47.Shortly before the appeal was to be heard Mr Daenke advised us that he had undertaken a further review of the discovered documents and proposed attempting to amend our Statement of Claim which the plaintiffs authorised him to do.
The usual objections are made by the plaintiffs of no specific document referred to and privilege. The defendants put forward their three responses on specific documents, privilege and waiver. There is no reference to a document within item 47 in clear and unambiguous terms and I decline to make any order for production pursuant to item 19 of the Notice to Produce.
Item 20 of the Notice to Produce is in the following terms:
20.Any document by which the Plaintiffs “conveyed your (their) view” as referred to at paragraph 49 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 49 of Mr Wooller’s affidavit is in the following terms:
49.I formed the view that there would be a further substantial delay and further significant costs incurred before we were able to get discovery and be given advice in relation to this action. I conveyed this view to the other Plaintiffs.
The same objections are taken by the plaintiffs with the same response by the defendants. Again the submissions of the defendants in more detail go to privilege and waiver and, in my view, this issue does not arise. There is no reference in clear and unambiguous terms to any document and R 59.02 has no work to do in respect of this item. I decline to order the production of any document pursuant to Notice to Produce item 20.
Item 21 of the Notice to Produce is in the following terms:
21.Any document constituting “information provided by our solicitors” as referred to in paragraph 52 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
Paragraph 52 of Mr Wooller’s affidavit is in the following terms:
52.Apart from information provided by our solicitors, I did not have any information as to the whereabouts of Graham Hellier and from my discussions with other Plaintiffs I believe that they had no information as to his whereabouts either.
Again the usual objections are taken by the plaintiffs with the usual response by the defendants in terms of the three specific responses, namely specific document response, privilege response and waiver response. The more detailed submissions go to the issue of privilege and waiver. There is no reference to a document within paragraph 52 of Mr Wooller’s affidavit and I decline to order production pursuant to item 21 of the Notice to Produce.
Item 23 of the Notice to Produce is in the following terms:
23.Any document constituting the advice as referred to in line 3 of paragraph 55 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007 and the proposal Amended Statement of Claim referred to in paragraph 55 of the Affidavit of Ivan Geoffrey Wooller dated 21 November 2007.
The relevant line 3 from paragraph 55 of Mr Wooller’s affidavit is in the following terms:
55.… The Plaintiffs have been advised by their solicitors of information obtained as a result of inspecting the documents discovered to date which includes information about Hellier’s knowledge of the existence of the Growers and their rights. …
It is the advice from the solicitors that is sought on the Notice to Produce. The plaintiffs take their usual objections of no specific documents referred to and privilege and the defendants put forward their three general responses and repeat their response to Notice to Produce items 4 and 10. I have rejected the request for production in relation to items 4 and 10 and for the same reasons reject the request for production in respect to Notice to Produce item 23. There is no reference to a document in clear and unambiguous terms in terms of the advice which is sought pursuant to the notice.
Item 24 of the Notice to Produce is in the following terms:
24.Any document comprising the “instructions” referred to in paragraph 3 of the Affidavit of John Daenke dated 20 November 2007.
In Mr Daenke’s affidavit at paragraph 3 he says:
3.I was instructed that as of April 2005 offers were being made by Perpetual Plantations of Australia Pty Ltd (“PPA”) to buy out the interests of Growers in the plantation and that there were concerns over the operation of the company and the offer which was being made.
Again the plaintiffs take their objections on no specific document referred to and privilege. Again the defendants take their three responses of specific document, privilege and waiver, and again there is a further submission that goes to privilege and waiver but not to the lack of identification of any documents. In my view there is no clear and unambiguous reference to a document and there will be no order for production in relation to item 24 of the Notice to Produce.
Item 27 of the Notice to Produce is in the following terms:
27.Any document comprising the “instructions” referred to in paragraph 14 of the Affidavit of John Daenke dated 20 November 2007.
In paragraph 14 of his affidavit, Mr Daenke says:
14.I was instructed by the Plaintiffs that the Peebinga property was advertised for sale. …
The rest of the paragraph goes to documents and correspondence which is exhibited to earlier affidavits filed in this matter.
In relation to item 27 the plaintiffs take the objections of no specific document referred to and privilege. The defendants take the three general responses of specific document, privilege and waiver. A further submission is put as to the instructions and why it would be inconsistent with privilege and fairness to allow the plaintiffs to now withhold that communication. Again there is no further submission on the lack of specific reference to any documents. In my view there is nothing in the nature of any reference to a document let alone a clear and unambiguous reference and R 59.02 has no application. I decline to order the production of any document pursuant to item 27 of the Notice to Produce.
Item 28 of the Notice to Produce is in the following terms:
28.Any document constituting your advice to the Plaintiffs and/or the Plaintiffs “instructions”, as referred to in paragraph 16 of the Affidavit of John Daenke dated 20 November 2007.
Paragraph 16 is relevantly in the following terms:
16.… In consequence I was instructed to commence proceedings …
The paragraph then goes on to detail the proceedings that he was instructed to commence and investigations that he was instructed to undertake. There is no reference to any document comprising those instructions. The plaintiffs took the no specific reference and privilege response and the defendants repeated the three general responses of no specific document, privilege and waiver.
The defendants referred to the line in paragraph 16 where Mr Daenke attested that after doing certain matters he was “then to advise or seek counsel’s advice on further action which might be taken”. The affidavit does not refer to that advice as in the sense of being then existing but rather as something to be contemplated in the future. In my view, there is no sufficient reference in the affidavit to a document such as to attract the operation of R 59.02.
In any event such a document if it were eventually created would be protected from production by legal professional privilege. There has been no drawing on the contents of that document in this paragraph (as it did not then exist) and in my view it cannot be successfully argued that the plaintiffs have acted in a manner inconsistent with the maintenance of privilege such as to create a waiver.
I decline to order the production of any document pursuant to Notice to Produce item 28.
Item 29 of the Notice to Produce is in the following terms:
29.Any document whereby you “advised” the Plaintiffs, as referred to in paragraph 19 of the Affidavit of John Daenke dated 20 November 2007.
Paragraph 19 of the affidavit of Mr Daenke is in the following terms:
19.I anticipated at that time [referring to when proceedings were issued and an application for an injunction order was heard by White J] and advised each of the Plaintiffs that when the discovery was obtained further advice would be provided to the Plaintiffs in relation to the circumstances of the granting of the Mortgage and Charge to Robier and the transfer of the mortgage to Thunder and as to whether and on what basis the proceedings should continue.
Again the plaintiffs take the no specific document referred to and privilege objections. The defendants repeat their three general responses and repeat the response to request 27. I note that in request 27 I noted that the defendants’ response went more to the issue of privilege and waiver rather than to whether there was any specific document referred to. There is no specific document referred to in any clear and unambiguous term in paragraph 19 of Mr Daenke’s affidavit and in those circumstances no order for production will be made pursuant to Notice to Produce item 29.
The Notice to Produce procedure has reduced the items in dispute between the plaintiffs and defendants from 33 to 22. In respect of the 22 items remaining in dispute the plaintiffs have generally been successful in resisting production on the grounds that there is no specific reference to a document or documents within the affidavit sufficient to satisfy the requirements of R 59.02. In determining those requirements I have adopted the approach of Mackenzie J in the Lilypond case that there needs to be a clear and unambiguous reference to a document or documents before the rule will apply.
The process for R 59.02 has largely been continued in R 61 of the 2006 Rules. The same gateway applies in that there must be a reference within the filed document to “some other document”.
Counsel for the plaintiffs submitted that their application to set aside the subpoenas had been part heard by the Honourable Justice Gray. It is apparent from his Honour’s decision that the stay order that he placed on the subpoenas was to remain in place pending the utilization by the defendants of the R 59.02 process. While that process has produced some documents for the defendants it may well be that the defendants will wish to continue to agitate their right to the production of further documents pursuant to the subpoena process where the test is in my view significantly different from that required for R 59.
It seems likely that the issue of the production of documents that the defendants seek from the plaintiffs has not yet been finalized. In my view any orders as to costs in relation to that process should await the final outcome. For that reason I propose to reserve the costs payable in respect of this particular application on the Notice to Produce heard before me until further order.
Accordingly, the formal order of the Court will be:
1.That the plaintiffs are not obliged to produce to the defendants any documents pursuant to the Notice to Produce items 22, 30, 31, 32, 33, 3, 4, 6, 7, 8, 9, 10, 11, 18, 19, 20, 21, 23, 24, 27, 28 and 29.
2.Costs reserved.
3. I certify fit for counsel